Delhi High Court
King Point Enterprises Co Ltd vs Ali Asgar & Ors on 13 December, 2017
$~23.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1566/2016
KING POINT ENTERPRISES CO LTD ..... Plaintiff
Through: Mr. Vipin Singhania, Adv.
versus
ALI ASGAR & ORS ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 13.12.2017
IA No.14848/2017 (of the plaintiff under Order IX Rule 9 of the CPC)
and IA No.14849/2017 (for condonation of 180 days delay in applying
therefor).
1. The suit, on 18th April, 2017, was dismissed in default as well as for
non-prosecution. The plaintiff has applied for restoration thereof.
2. The order dated 18th April, 2017 dismissing the suit in default and for
non-prosecution is as under:-
"1. Issues in the present petition were framed
on 27.10.2016 and the parties were directed to file
list of witnesses within a period of two weeks and
the affidavit of witnesses within a period of four
weeks from the said date. The matter was,
thereafter, listed before the learned Joint Registrar
on 01.12.2016. On the said date, the plaintiff
sought more time to file its list of witnesses and the
final opportunity was granted to the plaintiff to do
so within a period of two weeks. The plaintiff was
granted further four weeks time to file the evidence
by way of affidavits.
2. The suit was again listed in court on
21.12.2016 on which date the learned senior
counsel appearing for the plaintiff had stated that
CS(COMM) 1566/2016 page 1 of 5
an application had been filed for placing the
correct documents from the trademark registry but
the same was not on record.
3. However, the plaintiff did not file list of
witnesses or the evidence by way of affidavits even
during the extended time. On the next date of
hearing - that is, 03.03.2017 - none appeared for
the plaintiff and the hearing was adjourned to
06.03.2017. The matter could not be taken up on
06.03.2017 and was deferred to 23.03.2017. In the
meanwhile, the matter was listed before the Joint
Registrar on 16.03.2017. None appeared for the
plaintiff on the said date and the learned Joint
Registrar deferred the proceedings to 29.03.2017.
4. On 23.03.3017, learned counsel for the
plaintiff stated that he had instructions to withdraw
his vakalatnama and sought a discharge. In the
interest of justice, the suit was again deferred for
today. None has appeared for the plaintiff today.
None had appeared before the Joint Registrar on
29.03.2017 as well. The plaintiff has also not filed
the evidence by way of affidavits or the list of
witnesses.
5. In the circumstances, it is apparent that the
plaintiff is not interested in pursuing the present
petition. The same is dismissed in default as well as
for non-prosecution.
6. The interim order passed stands vacated. All
the pending applications are also disposed of."
3. The plaintiff / applicant, in the application, has stated (i) that the
plaintiff / applicant incorporated under the laws of Taiwan instituted this suit
for permanent injunction restraining (a) infringement of trade mark; (b)
passing off; and, (c) for ancillary reliefs; (ii) that vide ex pare order dated 31st
CS(COMM) 1566/2016 page 2 of 5
May, 2011 on the application of the plaintiff / applicant for ex parte relief,
ex parte interim relief was granted in favour of the plaintiff / applicant; (iii)
that on admissions of the defendants, the suit was partly decreed on 2nd
April, 2013; (iv) that the ex parte order relating to the remaining claim in the
suit was vacated and on appeal being preferred by the plaintiff / applicant
was restored; (v) that issues were framed in the suit and the suit was being
simultaneously listed for recording of evidence and for hearing on some
pending applications; (vi) that there was no communication between the
plaintiff / applicant and the counsel appearing for the plaintiff / applicant
before this Court; (vii) that the plaintiff / applicant had entrusted the matter
to their IPR Attorneys in India situated at Bombay and who in turn had
entrusted the matter to the Advocate conducting the suit before this Court
and the said Advocate was reporting to the Advocates at Bombay and who
in turn were reporting to the Legal Department of the plaintiff / applicant in
Taiwan; (viii) that till January, 2017 the plaintiff / applicant's Legal
Department was properly communicating with the IPR Attorneys at Bombay
and giving instructions; (ix) that however during February - July, 2017 the
plaintiff / applicant's Legal Department did not have competent legal
officers to understand the Court proceedings and its compliances and thus
proper instruction on behalf of the plaintiff / applicant could not be given to
the IPR Attorneys at Bombay; (x) that due to language problem and lack of
communication also proper instructions could not be given and it was in
these circumstances that the Advocate appearing before this Court sought
discharge; (xi) that during the first week of August, 2017 the plaintiff /
applicant's law firm in Taiwan took over the said matter and sent a request
CS(COMM) 1566/2016 page 3 of 5
to the IPR Attorneys at Bombay who informed of the dismissal of the suit as
aforesaid; and, (xii) that thereafter the plaintiff / applicant has appointed a
new counsel in Delhi and this application is being filed.
4. This application has come up today for the first time inpiste of the
plaintiff / applicant admittedly coming to know of the default in the first
week of August, 2017.
5. I have enquired from the counsel for the plaintiff / applicant that if
this even were to be treated as 'sufficient cause', what would fall in the
category of 'not sufficient cause'.
6. If inspite of admitted negligence and abandonment of litigation, the
Courts were to allow the litigants to approach the Court again, at any time,
to resume such litigation, it would not only affect the administration of
justice but not permit any rights to attain finality and leaving the opposite
parties always in a state of uncertainty forever, preventing them from
carrying on their affairs treating the matter to have attained finality.
7. As far as the reasons given by the plaintiff / applicant are concerned,
the plaintiff / applicant cannot on the one hand avail the benefits of the legal
proceedings and after availing the said benefits not pursue the legal
proceedings to the detriment of the opposite party. The plaintiff / applicant,
obviously after obtaining, interim order did not feel the need to pursue the
suit and therefore was not diligent.
8. The present suit has been qualified as a 'commercial suit' with special
procedure prescribed therefor for the sake of expediting disposal thereof to
encourage investment in India. The same also places a responsibility on the
CS(COMM) 1566/2016 page 4 of 5
litigants to be vigilant and does not allow them to at their own whims and
fancies pursue or not pursue a litigation.
9. I am therefore unable to hold the cause pleaded to be sufficient for
non-appearance and axiomatically no case for setting aside of dismissal is
made out.
10. The counsel for the plaintiff / applicant contends that the Court may
put the plaintiff / applicant to terms of costs or otherwise.
11. Court's time / indulgence cannot be purchased by costs, which are to
be awarded to the opposite party only when sufficient cause for non-
appearance when the suit was called for hearing is found and which has not
been found in the present case.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
DECEMBER 13, 2017
'pp'..
CS(COMM) 1566/2016 page 5 of 5
